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Sweet victories for employers facing religious discrimination claims

October 31st, 2013  |  Sheryl Allenson

Despite a Wall Street Journal article this week indicating the rise in religious discrimination claims, employers this months have something to smile about when considering the potential outcome of those claims. Employers were treated to two resounding victories related to religious discrimination in this Halloween month, in both cases putting the brakes on contentious claims.

To kick off the month, the Tenth Circuit reversed a district court’s decision to grant the EEOC summary judgment against Abercromie & Fitch.  The court below found that Abercrombie & Fitch violated Title VII by failing to provide a reasonable religious accommodation to a Muslim woman’s wearing of a headscarf, known as a hijab. To the contrary, the appeals court decided that Abercrombie was entitled to summary judgment; according to the Tenth Circuit there was no genuine dispute of material fact whether that the prospective employee never informed Abercrombie prior to the hiring decision that she wore the headscarf for religious reasons and that she needed an accommodation in light of a conflict between that practice and the company’s “Look Policy.”

You see, Abercrombie requires that employees in its stores comply with a “Look Policy”  That policy is intended “to promote and showcase the Abercrombie brand, which ‘exemplifies a classic East Coast collegiate style of clothing.,’” wrote the court.  According to the policy, “models” are employees who work on the sales floor, and in addition to the foregoing, they are prohibited from wearing black clothing and “caps” (though that term is not defined in the policy)”  

 Before her interview with Abercrombie, the applicant asked a friend who worked there whether wearing the hijab was permissible. In turn, her friend asked an assistant manager who indicated that he “did not see any problem” with the applicant wearing a hijab, as long as it was not black. Then applicant was interviewed by an assistant manager who was familiar with her, assumed she wore the hijab for religious reasons, but did not inquire whether she was Muslim. On the flip side, the applicant did not tell the interviewer why she was wearing the headscarf (which, incidentally, was black), nor did she say that she would need an accommodation to address a conflict between her religious practice and the company’s Look Policy.

 After the interview, the assistant store manager tried to get approval to hire the applicant but the district manager stonewalled his effort, after deciding the prospective employee’s application should be rejected because she wore a headscarf. The district manager decided that the headscarf was inconsistent with the Look Policy; however, he denied that he was informed that the employee wore it for religious reasons.

 After the EEOC filed suit on behalf of the prospective employee, the agency and Abercrombie filed cross-motions for summary judgment. The district court granted the EEOC’s motion. On appeal, the Tenth Circuit rejected the lower court’s findings, and instead honed in on whether there was a genuine dispute of material fact on a key point: that prior to the hire decision, the applicant never informed Abercrombie that her practice of wearing the hijab was based on a religious belief and that she would need an accommodation because that practice was in conflict with the company’s clothing policy.

Definition of religion.   In deciding the case, the Tenth Circuit considered the meaning of “religion,” and “religious beliefs” parsing apart the terms and discussing the import of the meaning to its decision.  The appeals court cited it opponent’s own information, noting the EEOC states that religion is very broadly defined under Title VII. According to the EEOC, the court explained, religion is uniquely personal and an individual matter. Drawing by analogy analysis from First Amendment cases, the appeals court said that courts look to an individual’s belief system rather than a belief of a particular group.

 Employer not on notice. Taking that into context, it was not hard for the court to take the next leap, and reject the district court’s reasoning that the employer was on notice that she needed an accommodation. Instead, in order to establish her prima facie case, the applicant had the initial burden of informing the employer of her religious beliefs and the need for accommodation. Also, the Tenth Circuit found that the record offered no support for the position that the assistant manager knew applicant wore the headscarf based on her religious belief.  

 Although undue hardship was a significant issue in another case decided this month, (and discussed in just a moment), here the appeals court only touched on undue hardship. Instead, the other factors already discussed created an end run for Abercrombie, and spelled doom for the EEOC.

 In another big win for employers, a district court in Nebraska granted JBS’s Rule 52 motion for judgment after trial on Phase 1 of EEOC litigation on behalf of Muslim employees claiming they were denied time for prayers required by their religion, in EEOC v JBS, USA, LLC. . Unlike the Abercrombie case, here, the dispute did not center on whether the EEOC met its prima facie case. Instead, the employer established undue hardship (under duel theories) if it were forced to accommodate the employees’ requests for accommodation.

 In this case, the EEOC filed a pattern-or-practice religious accommodation claim alleging that the company (formerly known as Swift) failed to allow its Somali Muslim employees to leave their meat processing line to pray, as required by the tenets of their religions. In a nutshell, the company agreed to provide certain accommodations to allow the Somali Muslims time to pray after they went on “strike.”  In order to accomplish this, the meal break was changed and the shift was shortened. Other workers were disenchanted and staged their own walkout. As a result, the employer rolled back the changes, and about 80 of the Somali Muslims left the facility and did not return. The next day they were terminated.

More than de minimus undue hardship.  Here, there was no dispute that he proposed accommodation to the Muslim pray requests were for the employee to “(1) allow Muslim employees to take the unscheduled breaks to pray and/or (2) “move the meal break during the remainder of Ramadan 2008 (from September 19 through September 30, 2008) to a time that coincided closely with such employees’ sunset prayer time” Under either scenario, the employer would be subject to undue hardship, the district court concluded. For example, unscheduled breaks would be very costly, and could have food and employee safety ramifications. These breaks would also place more than a de minimus burden on the employees’ coworkers, and there was a cost to the morale of employees.

 The employer would also be subject to undue hardship if forced to move the meal break. The employer actually tried to implement this accommodation; when there was pushback from non-Muslim employees, the company was forced to move away from that accommodation. Even if it were possible, there was food safety issues identified if there was a mass meal break. Clean-up and sanitization could not be done as it was currently on a rolling basis, the court observed. Although the EEOC made it over the prima facie hurdle, JBS prevailed on its Rule 52 motion, after establishing the undue hardship defense.

 Although the landscape may be ripe for more suits, employers can breathe a sigh of relief that the courts have given them treats, and not tricks,  on this Halloween day.

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